STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 99-2034

)

RICHARD G. CASH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on August 26, 1999, at Fort Pierce, Florida, before Susan B. Kirkland, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Daniel Villazon, Esquire

Division of Real Estate Department of Business and

Professional Regulation,

400 West Robinson Street, Suite N-308 Orlando, Florida 32801-1772

For Respondent: Richard G. Cash, pro se

Fort Pierce CCC 1203 Bell Avenue

Fort Pierce, Florida 34982 STATEMENT OF THE ISSUES

Whether Respondent violated Sections 475.25(1)(f) and (p), Florida Statutes (1993), and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On May 20, 1998, Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), filed an Administrative Complaint against Respondent, Richard G. Cash (Cash), alleging that he violated Sections 475.25(1)(f) and (p), Florida Statutes (1993), by pleading nolo contendere to a crime which involves moral turpitude and failing to notify the Florida Real Estate Commission within 30 days of the plea. Cash requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings on April 30, 1999, for assignment to an Administrative Law Judge. The case was originally assigned to Administrative Law Judge Patricia Hart Malono, but was reassigned to Administrative Law Judge Susan B. Kirkland to conduct the final hearing.

At the final hearing, Petitioner called Marjorie G. Bennett as its witness. Petitioner's Exhibits 1-5 were admitted in evidence. Respondent testified in his own behalf. Respondent's Exhibits 1 and 2 were admitted in evidence.

At the final hearing the parties agreed to file proposed recommended orders within ten days of the filing of the Transcript, which was filed on September 8, 1999. Petitioner's Proposed Recommended Order was filed on September 16, 1999, and has been considered in rendering this Recommended Order.

Respondent did not file a proposed recommended order.

FINDINGS OF FACT

1. Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.165 and Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant hereto.

2. Respondent, Richard G. Cash (Cash), has been a licensed Florida real estate broker since 1993. His broker's license number is BK-0267856. Prior to becoming a broker, Cash had been a licensed real estate salesperson since approximately 1973.

3. On or about July 22, 1994, Michael J. Provost, Assistant State Attorney for the Twentieth Judicial Circuit of the State of Florida, charged Cash, by information, with aggravated battery. The charge arose from a domestic dispute involving Cash and his former wife, when she appeared uninvited at his home late one night under the influence of drugs and demanded to take their four year-old daughter. His former wife was considerably taller and heavier than Cash, and a struggle ensued in which Cash hit her with a stun gun. Both Cash and his former wife received injuries as a result of the altercation.

4. On or about December 15, 1994, in the Circuit Court of the Twentieth Judicial Circuit for Collier County, Florida, Cash entered a plea of nolo contendere to Count I of the information, which was aggravated battery, a second degree felony.

   Adjudication was withheld, and Cash was placed on probation for five years.

5. As a condition of probation, Cash was to pay his former wife $4,000 within 30 days of the sentencing and another $4,000 within 12 months of sentencing. In exchange, the former wife agreed to release Cash from any civil liability arising from the incident. Cash paid the $8,000 to his former wife.

6. Cash did not notify the Florida Real Estate Commission that he had pled nolo contendere to a second degree felony. His explanation for failure to do so was that he understood from his attorney that because adjudication had been withheld, he had not been convicted of a crime.

7. On or about January 16, 1998, a warrant was issued for Cash for violation of probation for having shotguns and handguns at his home without first obtaining consent from his probation officer. On April 17, 1998, Cash pled guilty to violation of probation. He was adjudicated guilty of violating probation and aggravated battery, his probation was revoked, and he was sentenced to three years, seven months, and fifteen days with credit for fifteen days already served.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

9. The Department has alleged that Cash violated Sections 475.25(1)(f) and (p), Florida Statutes (1993), which provide:

   The commission may deny an application for licensure, registration, or permit, or renewal thereof; may place a licensee, registrant, or permittee on probation; may suspend a license, registration, or permit for a period not exceeding 10 years; may revoke a license, registration, or permit; may impose an administrative fine not to exceed $1,000 for each count or separate offense; and may issue a reprimand, and any or all of the foregoing, if it finds that the licensee, registrant, permittee, or applicant:

   
   

   * * *

   
   

   (f) Has been convicted or found guilty of, or entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the activities of a licensed broker or salesperson, or involves moral turpitude or fraudulent or dishonest dealing. The record of a conviction certified or authenticated in such form as to be admissible in evidence under the laws of the state shall be admissible as prima facie evidence of such guilt.

   
   

   * * *

   
   

   (p) Has failed to inform the commission in writing within 30 days after pleading guilty or nolo contendere to, or being convicted or found guilty of, any felony.

   
   

10. Cash pled nolo contendere to aggravated battery, a second degree felony. The crime did not directly relate to his activities as a licensed broker, but it did involve moral turpitude, which has been described by the Florida Supreme Court in State ex. rel. Tullidge v. Hollingsworth, 146 So. 2d 660, 661

    (Fla. 1933) as involving "the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society" and as being "contrary to justice, honesty, principle, or good morals."

11. The Department has proven by clear and convincing evidence that Cash violated Section 475.25(f), Florida Statutes (1993).

12. Cash did not notify the Real Estate Commission of his plea of nolo contendere in 1994 or his adjudication of guilt in 1998. The Department has proven by clear and convincing evidence that Cash violated Section 475.25(p), Florida Statutes (1993).

13. Rule 61J2-24.001, Florida Administrative Code, contains the disciplinary guidelines for violations of Chapter 475, Florida Statutes. Rule 61J2-24.001(3)(g) provides that the penalty for violation of Section 475.25(1)(f), Florida Statutes is up to seven years' suspension or revocation. Rule 61J2- 24.001(3)(q) provides that the penalty for violation of

Section 475.25(1)(p), Florida Statutes, is up to a five-year suspension or revocation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That a final order be entered finding that Richard G. Cash violated Sections 475.25(1)(f) and (p), Florida Statutes (1993), and that his broker's license be suspended for one year or until

he is released from the custody of the Florida Department of Corrections, whichever occurs first.

DONE AND ENTERED this 29th day of September, 1999, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings This 29th day of September, 1999.

COPIES FURNISHED:

Herbert S. Fecker, Division Director Division of Real Estate

Department of Business and Professional Regulation

400 West Robinson Street Orlando, Florida 32801

Barbara D. Auger, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Daniel Villazon, Esquire Division of Real Estate Department of Business and

Professional Regulation

400 West Robinson Street, Suite N-308 Orlando, Florida 32801

Richard G. Cash Fort Pierce CCC 1203 Bell Avenue

Fort Pierce, Florida 34982

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 99-002034

Orders for Case No: 99-002034